NORTH CAROLINA LAW REVIEW

Volume 47 | Number 2 Article 1

2-1-1969

Malicious Prosecution in North Carolina

Robert G. Byrd

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Robert G. Byrd, Malicious Prosecution in North Carolina, 47 N.C. L. Rev. 285 (1969).
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 MALICIOUS PROSECUTION IN NORTH
CAROLINAt
ROBERT G. BYRD*

In this survey of the North Carolina law of malicious prosecution,

the author examines the elements of the tort, including want of prob-
able cause, malice, and termination of the previous prosecution in the
plaintiff's favor. Although there exists a large body of case law dealing
with malicious prosecution, the article suggests that confusion remains
in several areas. The courts have not always clearly distinguished ma-
licious prosecution from the kindred tort of abuse of process and have
developed conflicting precedent on the question whether the judge or
the jury is to determine the existence of probable cause for the prior
prosecution. Finally, the author discusses a recent decision of the
supreme court that has apparently expanded the right to maintain a
suit for malicious prosecution of a civil action.

INTRODUCTION

The tort of malicious prosecution recognizes the individual's interest

in not being subjected to unjustified litigation. As the prosecution of a
legal action may result in harassment, annoyance, inconvenience, loss of
time, legal expenses, confinement, injury to reputation, interference with
property, and, perhaps, the invasion of other interests, the interest pro-
tected by a malicious prosecution action may not be regarded as trivial.
Substantial losses may result from the institution of any action, but a
recovery cannot be had merely because a proceeding is begun or because
it is prosecuted unsuccessfully. To permit recovery the prosecution must
be unjustified.'
Courts exist to resolve conflicts and litigation is the process through
which they do so. For this purpose, a substantially unfettered access to
the courts is in the public interest. Public policy favors the enforcement
of the criminal law and encourages, or at least should not discourage, the
initiation of a prosecution when reasonable grounds exist to believe that
a crime has been committed. Even when reasonable grounds are absent,
a prosecution to enforce the criminal law, rather than to accomplish the
prosecutor's own purposes, may be justified. In recognition of this public
interest the cause of action for malicious prosecution has been narrowly
t Copyright 1969 by Robert G. Byrd. All rights reserved.
* Professor of Law, University of North Carolina at Chapel Hill.
'Beal v. Robeson, 29 N.C. 280 (1847).
 NORTH CAROLINA LAW REVIEW [Vol. 47

confined so that recovery is permitted only when litigation has been in-2
stituted maliciously and unreasonably and has terminated unsuccessfully.
Because malice must be present, the tort has been described as one
that requires extreme fault.' However, since the malice required is not
personal ill will, spite, or grudge and may be shown by proof of a wrong-
ful act that is intentionally and knowingly done without just cause, 4 or
by inferences or presumptions based upon a variety of circumstances,;
the extreme fault characterization can be misleading. The Restatement
of Torts avoids use of the term "malice" altogether and substitutes for
it the requirement that the prior prosecution be initiated "primarily be-
cause of a purpose other than that of bringing an offender to justice."0
To recover for malicious prosecution the plaintiff must establish that
the defendant (1) initiated the earlier proceeding (2) maliciously and
(3) without probable cause, and that (4) it terminated in the plaintiff's
favor." Malice and the absence of probable cause must concur before
liability attaches.' Proof of the malicious institution of the prior action
does not establish a right to recover if probable cause for its prosecution
existed.' Although an inference of malice may be drawn from the insti-
tution of a groundless action,"0 malice is a separate and essential element
of the tort,"1 and mere proof that the action was instituted unreasonably
does not necessarily entitle the plaintiff to recover.
MALICIOUS PROSECUTION DISTINGUISHED FROM ABUSE OF PROCESS
The tort of abuse of process also provides protection against wrongful
litigation and confusion of it with malicious prosecution is not uncom-
mon."2 Both provide a remedy for misuse of process and sometimes they
completely overlap so that the same facts are sufficient to establish both
torts.'- More often, evidence that aids to establish the elements of one
2 Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966).

'W. SEAVEY, P. KEETON & R. KEETON, CASES AND MATERIALS ON THE LAW OF
TORTS 912 (2d ed. 1964).
'Gaither v.Carpenter, 143 N.C. 240, 55 S.E. 625 (1906); Railroad Co. v.
Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905).
'See pp. 302-03 infra.
6RESTATEMENT 0F TORTS § 653(1)(a)(ii) (1938).
'Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966); Mooney v.Mull, 216
N.C. 410, 5 S.E.2d 122 (1939).
'Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955).
'Ely v. Davis, 111 N.C. 24, 15 S.E. 878 (1892).
1
6Brown v. Martin, 176 N.C. 31, 96 S.E. 642 (1918).
Abbitt v. Bartlett, 252 N.C. 40, 112 S.E.2d 751 (1960) ; Turnage v. Austin,
186 12N.C. 266, 119 S.E. 359 (1923).
See, e.g., Barnette v.Woody,242 N.C.424, 88 S.E.2d 223 (1955).
18 Smith v. Somers, 213 N.C.209, 195 S.E. 382 (1938) (semble); Railroad Co.

v. Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905).

1969] MALICIOUS PROSECUTION
tort may be relevant to prove the other. For example, proof of an ul-
terior motive, which is essential in an action for abuse of process, is im-
portant evidence of malice and absence of probable cause in a malicious
prosecution action.14
The North Carolina Supreme Court has recognized this confusion
and has frequently attempted to distinguish the torts. 5 The court's at-
tempts are usually limited to repetition of strung-together quotations
from earlier cases and seem to have -become a routine part of opinions
involving either tort rather than a genuine effort to deal with basic prob-
lems. Distinctions made by the court are consistent with the usual broad
statement of the scope of the two torts: malicious prosecution consists of
the malicious institution of a groundless action while abuse of process en-
tails the use of legal process, which has been validly issued, to accomplish
objectives for which it was not intended.'
Attorneys have experienced considerable difficulty in prosecuting
claims based on these torts. They have identified their client's cause of
action as one for malicious prosecution-or for abuse of process-when
the facts permitted recovery, if at all, for the other tort only.17 Although
the label attached to a cause of action, standing alone, may be of no im-
portance,1 s a not uncommon result is the omission of factual allegations
necessary to establish a right of recovery. 9 Sometimes the plaintiff's
attorney has generously conceded that his client's action was not for the
tort the facts were found to establish"° or the defendant's attorney has
vigorously asserted a defect or defense appropriate in an action for ma-
licious prosecution but inapplicable to plaintiff's action for abuse of pro-
cess.2 ' Some attorneys have avoided the choice by alleging two causes
" Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (1944).
1
Fowle v. Fowle, 263 N.C. 724, 140 S.E.2d 398 (1965) ; Barnette v. Woody,
242 N.C. 424, 88 S.E.2d 223 (1955) ; Manufacturers & Jobbers Fin. Corp. v. Lane,
221 N.C. 189, 19 S.E.2d 849 (1942) ; Wright v. Harris, 160 N.C. 542, 76 S.E. 489
(1912).
"' Cases cited note 15 supra.
'Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276 (1945) ; Manufacturers &
Jobbers Fin. Corp. v. Lane, 221 N.C. 189, 19 S.E.2d 849 (1942); Carpenter, Bag-
gott & Co. v. Hanes, 167 N.C. 551, 83 S.E. 577 (1914); Wright v. Harris, 160
N.C. 542, 76 S.E. 489 (1912).
" Benbow v. Candle, 250 N.C. 371, 108 S.E.2d 663 (1959) ; Barnette v. Woody,
242 N.C. 424, 88 S.E.2d 223 (1955).
"Manufacturers & Jobbers Fin. Corp. v. Lane, 221 N.C. 189, 19 S.E.2d 849
(1942).
"0Benbow v. Caudle, 250 N.C. 371, 108 S.E.2d 663 (1959) ; Bailey v. McGill,
247 N.C. 286, 100 S.E.2d 860 (1957); Hewit v. Wooten, 52 N.C. 182 (1859).
"Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (1944) ; Lockhart v. Bear, 117
N.C. 298, 23 S.E. 484 (1895); Sneedon v. Harris, 109 N.C. 349, 13 S.E. 920
(1891).
 NORTH CAROLINA LAW REVIEW [Vol. 47

of action based on the same facts22 or by the omission of any descriptive

label. 3
Abuse of process requires both an ulterior motive and an act in the
use of legal process not proper in the regular prosecution of the proceed-
ing.24' Both requirements relate to the defendant's purpose to achieve
through use of the process some end foreign to those it was designed to
effect. The ulterior purpose may be to extort money,25 to collect a debt,"0
to gain possession of property,21 to injure plaintiff's person, 28 business 29
or reputation,3" or to gain some other advantage not within the scope
of the process." Institution of legal process with bad intentions or im-2
proper motives, without more, does not constitute an abuse of process.
Some act by which the defendant uses the process in an effort to achieve
his improper purpose must be present.83
The supreme court's decisions state-and usually require-that the
act of misuse must occur after the process has been issued 4 and, on this
basis, hold that a threat to initiate process- which is in fact later pro-
cured-is insufficient.35 If the process has issued, the act required may
be nothing more than an offer by defendant to discontinue the process if
22 Smith v. Somers, 213 N.C. 209, 195 S.E. 382 (1938); Abernethy v. Burns,
210 N.C. 636, 188 S.E. 97 (1936).
" Fowle v. Fowle, 263 N.C. 724, 140 S.E.2d 398 (1965); Barnette v. Woody,
242 N.C. 424, 88 S.E.2d 223 (1955).
24 Benbow v. Caudle, 250 N.C. 371, 108 S.E.2d 663 (1959); Edwards v. Jenkins,
247 N.C. 565, 101 S.E.2d 410 (1958) ; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d
223 (1955).
"5 Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276 (1945); Ledford v. Smith,
212 N.C. 447, 193 S.E. 722 (1937) ; Wright v. Harris, 160 N.C. 542, 76 S.E. 489
(1912).
2
Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (1944); Smith v. Somers, 213
N.C. 209, 195 S.E. 382 (1938).
2
Jackson v. Telegraph Co., 139 N.C. 347, 51 S.E. 1015 (1905); Sneeden v.
Harris, 109 N.C. 349, 13 S.E. 920 (1891).
8
" Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97 (1936).
9
Ludwick v. Penny, 158 N.C. 104, 73 S.E. 288 (1911).
'Ledford v. Smith, 212 N.C. 447, 193 S.E. 722 (1937).
"Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957) (doctor commits
plaintiff to mental hospital to rid himself of an incurable patient); Lockhart v.
Bear, 117 N.C. 298, 23 S.E. 484 (1895) (creditor's attempt to reach property
exempt from execution).
2 Edwards v. Jenkins, 247 N.C. 565, 101 S.E.2d 410 (1958) ; Melton v. Rick-
man, 225 N.C. 700, 36 S.E.2d 276 (1946); Martin v. Reidsville Motor Co., 201 N.C.
641, 161 S.E. 77 (1931).
" Benbow v. Caudle, 250 N.C. 371, 108 S.E.2d 663 (1959) ; Manufacturers &
Jobbers Fin. Corp. v. Lane, 221 N.C. 189, 19 S.E.2d 849 (1942); Stanford v.
Grocery Co., 143 N.C. 419, 55 S.E. 815 (1906).
" Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955) ; Melton v. Rickman,
225 N.C. 700, 36 S.E.2d 276 (1945); Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d
884 (1944);
5 Carpenter, Baggott & Co. v. Hanes, 167 N.C. 551, 83 S.E. 577 (1914).
Benbow v. Caudle, 250 N.C. 371, 108 S.E.2d 663 (1959).
1969] MALICIOUS PROSECUTION
plaintiff pays him money3 6 or a threat to continue it unless plaintiff pays
him. 7 The misuse may be defendant's mistreatment of plaintiff while
he is in custody under an arrest procured by defendant 8 or defendant's
levy on plaintiff's property of a value ten times the amount of the debt
he is attempting to collect 9
To identify a specific act after issuance of the process through which
defendant attempts to use it as leverage to accomplish a collateral purpose
is not always as easy as in the examples above. Suppose defendant causes
plaintiff's arrest so that he can take possession of land from plaintiff and,
while plaintiff is in custody, defendant goes into possession. 40 Or sup-
pose a creditor successfully extorts money from his debtor 41 or a doctor
commits a patient with an incurable disease to a mental institution to
rid himself of the patient.42 If in each situation all proceedings on the
process involved were completely regular, has the process been abused?
Can a distinct act of abuse be found in taking possession of land, in ac-
cepting payment of the extorted money, or in permitting plaintiff's con-
finement in the mental institution to continue? In each of these situations
the court found an action for abuse of process to exist. Yet, perhaps
in the order in which they are set out, each requires greater rationalization
to find any act after issuance of the process that is irregular to normal
proceedings on it.
One might reasonably suggest that these cases run against the cur-
rent of North Carolina cases in this area. To dismiss the cases on this
basis, however, may be to ignore a problem that seems to present re-
curring difficulty for the supreme court. In addition to these, there are
three other key cases43 in the area which have been decided by a bare
majority of the court. Two points of conflict can be identified. One is
whether some improper act in the use of the process after its issuance is
necessary ;44 the other is whether the evidence in a particular case is suf-
" Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (1944); Lockhart v. Bear, 117
N.C. 298, 23 S.E. 484 (1895).
"Ledford v. Smith, 212 N.C. 447, 193 S.E. 722 (1937).
" Smith v. Somers, 213 N.C. 209, 195 S.E. 382 (1938); Abernethy v. Burns,
210 N.C. 636, 188 S.E. 97 (1936).
"Railroad Co. v. Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905).
Sneeden v. Harris, 109 N.C. 349, 13 S.E. 920 (1891).
"'Ledford v. Smith, 212 N.C. 447, 193 S.E. 722 (1937) ; Wright v. Harris, 160
N.C. 542, 76 S.E. 489 (1912).
" Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860 (1957).
"'Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276 (1945) ; Ellis v. Wellons,
224 N.C. 269, 29 S.E.2d 884 (1944); Ledford v. Smith, 212 N.C. 447, 193 S.E.
722 (1937).
"See Melton v. Rickman, 225 N.C. 700, 36 S.E.2d 276 (1945) (majority and
dissenting opinions).
 NORTH CAROLINA LAW REVIEW [Vol. 47
ficient to show such an act.45 To the extent that the second point repre-
sents nothing more than a difference of opinion on what facts may be
found from the evidence, the cases in which it arises assume no par-
ticular importance since this type of divergence occurs in all areas of the
law. In some cases, however, the dispute, although stated in these terms,
seems to go to the more basic question whether the regular use of process
to accomplish some collateral objective is enough to constitute its abuse.
A proper context in which to examine this question is to show how the
action for abuse of process complements that for malicious prosecution.
Perhaps the greatest practical significance of the abuse of process
action is that it provides a remedy for losses caused by improper use of
legal process in situations in which a malicious prosecution action is un-
available. When legal process against the plaintiff is justifiably initiated
by the defendant, no action for malicious prosecution can be maintained ;40
yet defendant may use the process to gain advantages beyond those it
was designed to give. For example, defendant may cause plaintiff's ar-
rest for a crime plaintiff has committed and subsequently offer to discon-
tinue the prosecution if plaintiff pays a debt claimed to be owed. Since
under these circumstances reasonable grounds for the prosecution exists,
an action for malicious prosecution would fail and abuse of process is
the only basis for recovery. Here, an irregular use has been made of the
process after its issuance.
A malicious prosecution action is also unavailable when regular use
is made of process to accomplish some collateral purpose, if reasonable
grounds for prosecution exist. Whether this gap left by the malicious
prosecution action is filled by the action for abuse of process is the question
on which conflicting views seem to appear in the North Carolina cases. In-
volved in its determination is the basic policy decision whether the individ-
ual's interest should be subordinated to the public interest in unfettered
access to the courts. Reasonable persons may disagree on what recognition
they give to these competing interests. Despite inconsistent decisions and
substantial dissents, the conclusion that North Carolina does not rec-
ognize an abuse of process action under these circumstances seems cor-
rect.47 Yet two factors cause doubt to linger whether the court has ever
explored the basic question involved in this determination. First, in the
cases which establish the rule, the court does not state reasons for the
" See Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884 (1944) (majority and dis-
senting
"6 Seeopinions).
pp. 291-92 infra.
,7 Cases cited notes 33 & 34 supra.
1969] MALICIOUS PROSECUTION
requirement that an act in the use of the process be present. Second, de-
cisions that cannot .be reconciled with any realistic application of the
requirement continue to be handed down.
WANT OF PROBABLE CAUSE
48
In a malicious prosecution action the plaintiff must allege and
prove4 9 that the prosecution was initiated without probable cause. If un-
der the circumstances a reasonable belief in guilt exists, neither the inno-
1
cence of the plaintiff," nor the fact that the prosecution was with malice,
nor even the two combined is sufficient to impose liability. Though an
action is maliciously prosecuted, no liability exists unless it is instituted
or continued without reasonable grounds. The enforcement of the crim-
inal law is of such importance that it justifies the prosecution of persons
apparently guilty although their prosecution is motivated by personal
ill will or other ulterior reasons. For the same reason, the mere fact that
an innocent person has been prosecuted does not establish a cause of
action. If reasonable grounds for suspicion are present, the prosecution
may be justified, and the innocence of the person prosecuted is largely
immaterial.
Good faith alone is not sufficient to constitute probable cause. An
honest belief in the plaintiff's guilt is not enough unless it is reasonable
under the circumstances. 2 Nevertheless, whether probable cause exists
is not to be determined solely on the basis of external circumstances so
that the belief held by the defendant is totally disregarded. When the
defendant knows that the plaintiff is innocent, no probable cause can be
found and the defendant is held liable despite the existence of circum-
stances that, except for this knowledge, create a reasonable suspicion of
guilt." Although defendant has no actual knowledge of the plaintiff's
innocence, his belief that the charges against the plaintiff are false is a
relevant factor on the issue of probable cause; but it should not, as does
actual knowledge of the plaintiff's innocence, necessarily establish the
absence of probable cause."4
8 Greer v. Skyxvay Broadcasting Co., 256 N.C. 382, 124 S.E.2d 98 (1962);
Ely v. Davis, 111 N.C. 24, 15 S.E. 878 (1892).
Newton v. McGowan, 256 N.C. 421, 124 S.E.2d 142 (1962) ; Miller v. Green-
wood, 218 N.C. 146, 10 S.E.2d 708 (1940).
"°Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122 (1939) ; Swain v. Stafford, 26
N.C. 392 (1844); McRae v. O'Neal, 13 N.C. 166 (1829).
"t Tucker v. Davis, 77 N.C. 330 (1877) ; Plummer v. Gheen, 10 N.C. 66 (1824).
"Beal v. Robeson, 29 N.C. 280 (1847).
"Bradley v. Morris, 44 N.C. 395 (1853) ; Bell v. Pearcy, 27 N.C. 83 (1844).
"Bryant v. Murray, 239 N.C. 18, 79 S.E.2d 243 (1953); Taylor v. Hodge,
229 N.C. 558, 50 S.E.2d 307 (1948); Watt v. Greenlee, 9 N.C. 186 (1822).
 NORTH CAROLINA LAW REVIEW [Vol. 47

Probable cause is the existence of facts and circumstances sufficient

to excite in a reasonable mind a suspicion of guilt and to prompt a reason-
able man, having a due regard for the rights of others, as well as his own,
to commence the prosecution. 5 The existence of probable cause depends
upon apparent guilt rather than actual guilt and involves the determina-
tion of what a reasonable person would have believed under the circum-
stances rather than what the defendant personally believed. Positive evi-
dence of guilt need not be present, and the existence of facts and cir-
cumstances that raise a reasonable suspicion of guilt is sufficient to es-
tablish probable cause.
The question to be determined is the presence or absence of probable
cause at the time the prior prosecution was begun, and it must be deter-
mined on the basis of facts and circumstances known to the defendant at
that time.56 Facts that establish the plaintiff's innocence or explain sus-
picious circumstances that existed earlier are inadmissible to show the
absence of probable cause if they were unknown to the prosecutor when
he initiated the original action.
Generally, courts also hold that the existence of probable cause can-
not be established by later discovered evidence." Circumstances that
come to the defendant's knowledge after the prosecution is begun, what-
ever grounds for reasonable suspicion they create, are inadmissible except
to establish the actual guilt of the accused." A number of North Caro-
lina cases indicate that facts unknown to the defendant when he began the
prosecution may be considered to establish probable cause although they
are insufficient to show actual guilt."0 The apparent justification for the
North Carolina view is the disfavor of an action for malicious prosecu-
tion, which has led courts generally to limit the action in a number of
ways. This additional limitation goes far, however, since it permits
the defendant to justify a malicious and unreasonable prosecution that has
terminated in favor of the plaintiff by incriminating facts he later dis-
covers. Whether the need for a relatively free access to the courts war-
rants the denial of liability under these circumstances is debatable.
" Newton v. McGowan, 256 N.C. 421, 124 S.E.2d 142 (1962); Swain v. Staf-
ford, 25 N.C. 289 (1843).
" Motsinger v. Sink, 168 N.C. 548, 84 S.E. 847 (1915); Moore v. First Natl
Bank, 140 N.C. 293, 52 S.E. 944 (1905); Swain v. Stafford, 25 N.C. 289 (1843).
"'Rawls v. Bennett, 221 N.C. 127, 19 S.E.2d 126 (1942) ; Mooney v. Mull, 216
N.C. 410, 5 S.E.2d 122 (1939); Swain v. Stafford, 26 N.C. 392 (1844).
" W. PROSSER, LAw OF TORTS § 113, at 860 (3d ed. 1964) [hereinafter cited as
PROSSER].
60
Id.
Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122 (1939); Johnson v. Chambers,
32 N.C. 287 (1849); Bell v. Pearcy, 27 N.C. 83 (1844).
1969] MALICIOUS PROSECUTION
The reasonableness of defendant's action must be judged in the light
of the total circumstances known to him at the time he initiated the pro-
ceeding. Actual knowledge of the plaintiff's innocence conclusively es-
tablishes the want of probable cause, and however grave other circum-
stances of suspicion may be, defendant cannot rely upon them to justify
his action."1 Any reasonable suspicion that may exist when the defendant
discovers plaintiff in possession of goods recently stolen from him disap-
pears upon a satisfactory explanation by the plaintiff and others, of how
he came into possession.6 2 A prosecution on the basis of information which
unmistakedly points to the plaintiff's guilt may be unreasonable when the
source of information is no more than rumor. 3 The plaintiff's bad reputa-
tion is a relevant circumstance, since one may reasonably suspect a person
with a bad reputation on less evidence than a person with a good repu-
tation.4
The diligence that the defendant must use in discovering what the
facts are, or in ascertaining the accuracy of information in his possession,
is that which a reasonable man would use under the circumstances. 65 To
proceed on the basis of mere rumor without investigation is unreason-
able.0" When circumstances that otherwise seem incriminating are log-
ically explained, the defendant can no longer reasonably rely upon them ;07
in some cases, a failure to afford the plaintiff an opportunity for ex-
planation may preclude the existence of probable cause." On the other
hand, the reliability of plaintiff's own admissions made during the course
of a civil suit cannot be questioned and they may be used to establish
probable cause.69 If the circumstances call for further inquiry, only a
reasonable investigation is required, and when it has been made, probable
cause may be found even though a more thorough investigation might
70
have revealed that no crime had been committed.
Neither a mistake of facte 1 nor an error of judgment7 2 on the de-
"Bell v. Pearcy, 27 N.C. 83 (1844).
"Gray v. Bennett, 250 N.C. 707, 110 S.E.2d 324 (1959); Bryant v. Murray,
239 N.C. 18, 79 S.E.2d 243 (1953); Rice v. Ponder, 29 N.C. 390 (1847).
03 Tyler v. Mahoney, 166 N.C. 509, 82 S.E. 870 (1914); Tucker v. Wilkins,
105 N.C. 272, 11 S.E. 575 (1890).
O Bostick v. Rutherford, 11 N.C. 83 (1825).
" Swain v. Stafford, 26 N.C. 392 (1844).
" Cases cited note 63 supra.
'T Cases cited note 62 supra.
"Swain v. Stafford, 26 N.C. 398 (1844).
"Rawls v. Bennett, 221 N.C. 127, 19 S.E.2d 126 (1942).
!o Swain
71 v. Stafford, 26 N.C. 392 (1844).
Turnage v. Austin, 186 N.C. 266, 119 S.E. 359 (1923).
" Bell v. Pearcy, 27 N.C. 83 (1844).
 NORTH CAROLINA LAW REVIEW [Vol. 47

fendant's part is inconsistent with a finding of probable cause. It may

reasonably appear to the defendant that his property has been stolen when
it has not been taken at all and that the plaintiff, who is innocent, stole it;
under these circumstances his prosecution of the plaintiff is justified. In
one case,7 3 at least, the supreme court seems to have taken a harder view
when the mistake involved is one of law rather than of fact, although
mistake of law was not mentioned in the opinion. The court found that
no probable cause existed for a perjury prosecution, even if it were proved
that the plaintiff had testified falsely, because the false testimony was not
pertinent to the inquiry before the court. For the defendant to prove that
the plaintiff had lied under oath in a judicial proceeding was not enough
to establish probable cause; he must have made appropriate inquiry about
the law of perjury or proceed at his peril. Another type of case involving
mistake of law is that in which the justification for an embezzlement
prosecution depends in part upon whether defendant's or plaintiff's ver-
sion of the legal effect of a transaction between them is accepted. The
plaintiff contends that the effect of the transaction was to transfer the
allegedly embezzled property to him while defendant claims its effect was
to entrust the plaintiff with possession only under a consignment, em-
ployment, or similar relationship. In this situation the court seems to
attach no particular significance to the fact that the mistake is one of
law rather than of fact.1 4 Also, in North Carolina a malicious prose-
cution action cannot be maintained when the prior prosecution was for
conduct that did not constitute a criminal offense. This holding, however,
is based on the view that the prior proceeding is a nullity." Many juris-
dictions hold that the defendant cannot escape liability because of a mis-
6
take of law but this view has been criticized.7
Malice does not establish the want of probable cause or even create
an inference that probable cause is lacking. 7 Proof that tends to show
malice may be relevant, however, on the issue of probable cause. Evidence
that the chief aim of the prosecution was to accomplish some collateral
purpose is admissible to show the absence of probable cause, since "a per-
son, bent on accomplishing some ulterior motive, will act upon much less
convincing evidence than one whose only desire is to promote the public
7
Smith v. Deaver, 49 N.C. 513 (1857).
",Gray v. Bennett, 250 N.C. 707, 110 S.E.2d 324 (1959); Durham v. Jones &
Powell, 119 N.C. 262, 25 S.E. 873 (1896); Marcus v. Berstein, Cohen & Co., 117
N.C. 30, 23 S.E. 38 (1895).
"See p. 304 infra.
PROSSER § 113, at 861.
"Motsinger v. Sink, 168 N.C. 548, 84 S.E. 847 (1915).
1969] MALICIOUS PROSECUTION
good." 78 On this basis, want of probable cause may be shown by evidence
that the defendant's primary purpose in bringing the prosecution was to
obtain the possession of personal property from the plaintiff79 or to enforce
the collection of a debt,8 ° or by proof that a second prosecution was ini-
tiated upon the same evidence on which the plaintiff had already been
acquitted l
That the defendant, in bringing the prosecution, acted upon the ad-
vice of an attorney that the facts warranted it, is obviously significant
to the determination of probable cause. An overwhelming majority of
jurisdictions hold that reliance upon the advice of counsel in initiating
the prosecution conclusively establishes probable cause."' In North Car-
olina reliance upon the advice of counsel is only evidence, to be con-
sidered with other relevant evidence, that probable cause existed.83 A full
and fair disclosure of all facts must be made to the attorney and the advice
must be sought in good faith.8 4 If the defendant withholds information
from the attorney or knows, despite the appearances of guilt that arise
from the facts, that the plaintiff is innocent, he cannot hide behind his
pretended reliance upon an attorney's advice to avoid liability."5
Presumptions and Inferences
A criminal proceeding, once begun, may be disposed of in a variety
of ways and the nature of its disposition may have an important bearing
on the issue of probable cause. The prosecution may be discontinued
voluntarily or under an agreement between the parties; it may terminate
in the plaintiff's conviction or acquittal; or it may end at an earlier stage
when a magistrate or grand jury finds no probable cause to exist. A
particular disposition of the case at any stage of the proceeding, whether
or not that disposition is final, may create a presumption or permit an
inference concerning the existence or absence of probable cause for the
prosecution.
,8Dickerson v. Atlantic Ref. Co., 201 N.C. 90, 159 S.E. 446 (1931).
0Id. (dictum).
'o Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966).

Hinson v. Powell, 109 N.C. 534, 14 S.E. 301 (1891). This may not be true
when the two prosecutions are not identical or the second prosecution rests upon
additional evidence. Coble v. Huffines, 133 N.C. 422, 45 S.E. 760 (1903).
" PROSSER § 113, at 861-64.
8
Bassinov v. Finkle, 261 N.C. 109, 134 S.E.2d 130 (1964) ; Bryant v. Murray,
239 N.C. 18, 79 S.E.2d 243 (1953); Downing v. Stone, 152 N.C. 525, 68 S.E. 9
(1910).
84 1d.
Honeycut v. Freeman, 35 N.C. 320 (1852). That the defendant acted upon
the legal advice of a layman may be of no help to him. Beal v. Robeson, 30 N.C.
276 (1848); cf. Morgan v. Stewart, 144 N.C. 424, 57 S.E. 149 (1907),
 NORTH CAROLINA LAW REVIEW [Vol. 47

The plaintiff's conviction of the charges against him creates a pre-

sumption that probable cause for the prosecution existed."' The presump-
tion arises even though the conviction is reversed on appeal 87 or set aside
by the trial court.'8 The conviction, whether by verdict of a jury, or by
judgment of a court sitting without a jury, establishes probable cause.
The presumption is conclusive and may not be rebutted by evidence which
tends to show the absence of probable cause. 9 However, a conviction that
was procured by perjury or other fraudulent means is not conclusive on
the issue of probable cause and may be impeached." °
An acquittal of the plaintiff does not create a presumption or permit
an inference that probable cause was lacking."' It is not evidence one way
or the other as to whether there was probable cause for the prosecution. 2
Grounds for reasonable suspicion of the plaintiff's guilt may exist when
full proof of it cannot be established at the trial.03 The verdict of acquittal
indicates only that the evidence was not sufficient to overcome the pre-
94
sumption of innocence and to establish guilt beyond a reasonable doubt.
Beyond this, it does not disclose the relative strength of the evidence.
The discharge of the plaintiff after a preliminary examination before
the magistrate or upon the failure of the grand jury to indict is prima facie
evidence of the want of probable cause. 5 The absence of probable cause
is not conclusively established by the discharge but in some cases90 the
court has held that the discharge operates to shift to the defendant the
burden of showing that probable cause for the prosecution existed. Con-
versely, a finding of probable cause by the magistrate or grand jury is
prima facie evidence that reasonable grounds for the prosecution existed. 7
"aOverton v. Combs, 182 N.C. 4, 108 S.E. 357 (1921); Smith v. Thomas, 149
N.C. 100, 62 S.E. 772 (1908).
"Smith v. Thomas, 149 N.C. 100, 62 S.E. 772 (1908) ; Price v. Stanley, 128
N.C. 38, 38 S.E. 33 (1901); Griffis v. Sellars, 19 N.C. 492 (1837).
"Overton v. Combs, 182 N.C. 4, 108 S.E. 357 (1921).
" Cases cited note 86 supra.
"0Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97 (1936); Moore v. Winfield,
207 N.C. 767, 178 S.E. 605 (1935).
" Abbitt v. Bartlett, 252 N.C. 40, 112 S.E.2d 751 (1960) ; Downing v. Stone,
152 N.C. 40, 68 S.E. 9 (1910); Morgan v. Stewart, 144 N.C. 424, 57 S.E. 149
(1907).
92[d

" Griffis v. Sellars, 19 N.C. 492 (1837).

" Bell v. Pearcy, 33 N.C. 233 (1850).
" Smith v. Eastern Bldg. & Loan Ass'n, 116 N.C. 73, 20 S.E. 963 (1895);
Johnson v. Chambers, 32 N.C. 287 (1849); Bostic v. Rutherford, 11 N.C. 83
(1825).
" Smith v. Eastern Bldg. & Loan Ass'n, 116 N.C. 73, 20 S.E. 963 (1895);
McRae v. O'Neal, 13 N.C. 166 (1829); Johnston v. Martin, 7 N.C. 248 (1819).
9
Mitchem v. National Weaving Co., 210 N.C. 732, 188 S.E. 329 (1936).
1969] MALICIOUS PROSECUTION 297
Conflicting findings of the magistrate and the grand jury in the same case
may neutralize the effect of each on the determination of probable cause
in the malicious prosecution action."'
The rule that the plaintiff's discharge prima facie establishes the ab-
sence of probable cause does not apply when the discharge is pursuant to
an agreement between the parties. 9 A discharge under these circum-
stances is not based upon an inquiry into the reasonableness of the prose-
cution, and the reason for the inference no longer exists.100 Some courts
hold that a compromise entered into voluntarily by the plaintiff conclusive-
ly establishes probable cause.' 1 North Carolina has not given it this
effect, but does deny recovery in this situation on grounds that, because
of the compromise, the prosecution has not terminated in favor of the
plaintiff. 102
Even though the plaintiff's actions may have induced the withdrawal
of the charges against him, an inference of the want of probable cause
may arise unless through his conduct he has participated in a termination
of the prosecution that leaves open the question of its reasonableness.
Thus, the mere fact that embezzlement charges against the plaintiff are
withdrawn when he pays for goods which he at all times claims to have
purchased does not establish a compromise, and an inference of the absence
of probable cause may be drawn from the termination of the prosecution
under these circumstances. 03 Especially is this true when the plaintiff
never abandons his protests that the prosecution is malicious and un-
founded." 4
Oddly enough, an early case'0 5 held that the waiver of a preliminary
examination before the magistrate or grand jury conclusively established
probable cause for the prosecution. The waiver, it was held, had this
effect even though made to enable the plaintiff to post bond so as to avoid
confinement while the preliminary hearing was held. Later cases recog-
nized that to give the waiver a conclusive effect and at the same time give
08
Id.
"' Moore v. First Nat'l Bank, 140 N.C. 293, 52 S.E. 944 (1905); Welch v.
Cheek, 125 N.C. 353, 34 S.E. 531 (1899); Welch v. Cheek, 115 N.C. 310, 20 S.E.
460 10(1894).
When a case is transferred to another court upon demand for a jury trial, no
inference of want of probable cause is permissible since no inquiry into that issue
is made incident to the transfer. Newton v. McGowan, 256 N.C. 421, 124 S.E.2d
142 (1962).
...PROSSER § 113, at 858.
"'See p. 307 infra.
103 Marcus v. Berstein, Cohen & Co., 117 N.C. 31, 23 S.E. 38 (1895).
104
Id.
10 Jones v. Wilmington & W.R.R., 125 N.C. 227, 34 S.E. 398 (1899).
 NORTH CAROLINA LAW REVIEW [Vol. 47'

an actual finding of probable cause in the preliminary hearing only a

prima facie effect was inconsistent, and the voluntary waiver of the pre-
liminary examination is now given only a prima facie effect.' 0
The Accused's Guilt-A Complete Defense
That the accused is in fact guilty of the charges brought against him
is a complete defense to a malicious prosecution action.'0 7 The actual
guilt of the accused defeats any right to recover, and proof, however
conclusive, of the malicious institution of the prosecution and of the total
want of probable cause for it does not entitle him to recover. The prose-
cution of persons guilty of criminal violations is in the public interest and
the same policy which limits a malicious prosecution action to permit a
good faith prosecution of the innocent when grounds exist for reasonable
suspicion of guilt requires that it be restricted to exclude liability for the
prosecution of the guilty. Apart from the public interest, a claim for
compensation by the accused based on his prosecution for a crime he
actually committed seems to be without merit.
The acquittal of the accused in the criminal prosecution does not
preclude proof of his guilt in the malicious prosecution action.' 08 The
criminal standard of proof beyond a reasonable doubt does not apply,
and it is sufficient to establish the accused's guilt by the preponderance
of the evidence. The issue involved is the accused's guilt at the time of
the malicious prosecution trial, and it may be shown by evidence discovered
for the first time after the criminal prosecution was begun or after it
ended.'0 9 Proof is not limited, as it is on the issue of probable cause, to
facts and circumstances within the defendant's knowledge when the prose-
cution was begun and any evidence that tends to show guilt is admis-
sible."'
Functions of Judge and Jury
Most jurisdictions hold that probable cause is a question of law to
be decided by the court.' Factual disputes and the credibility of witnesses
are decided by the jury, but once the facts are established, the determin-
ation whether the defendant had grounds for a reasonable belief in the
10' Bryant v. Murray, 239 N.C. 18, 79 S.E.2d 243 (1953); Jones v. Wilming-
ton 10,& W.R.R., 131 N.C. 133, 42 S.E. 559 (1902).
Cases cited in note 60 supra.
Bell v. Pearcy, 27 N.C. 83 (1844).
108
"'Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122 (1939); Thurber v. Eastern
Bldg & Loan Ass'n, 118 N.C. 129, 24 S.E. 730 (1896).
,Id.
PROSSER § 113, at 865-66.
...
1969] MALICIOUS PROSECUTION
guilt of the accused is one of law for the judge. Under this view the
facts may be established by a special verdict, or the whole case may be
presented to the jury under instructions that indicate the presence or
absence of probable cause in the different factual situations that the jury
could find to exist from the evidence.:" 2
Many North Carolina cases seem to follow the view outlined above. An3
early case which illustrates this line of decisions is Beal v. Robeson.1
In this case the trial court instructed that "'should the jury conclude,
in making an application of the facts proved, that the evidence before
the minds of the defendants furnished them, at the time, with reasonable
grounds of suspicion and for suing out the warrant, the plaintiff could not
recover.' "14 The instruction was held erroneous:
This case brings up again the question, whether probable cause is mat-
ter of law, so as to make it the duty of the Court to direct the jury,
that, if they find certain facts upon the evidence, or draw from them
certain other inferences of fact, there is or is not probable cause; thus
leaving the questions of fact to the jury, and keeping their effect, in
point of reason, for the decision of the Court, as a matter of law. Upon
that question the opinion of the Court is in the affirmative ....115
The point is concluded in the State by repeated adjudications ....
But, independent of authority, our reflections satisfy us, that the prin-
ciple is perfectly sound. It is a question of reason, whether certain
ascertained facts and circumstances constitute a probable and rational
ground for charging a particular person with crime ....116
Now, our enquiry is, whether, for the determination of the question
as to the sufficiency or the insufficiency of the grounds of suspicion, sup-
posing them to exist in fact, the Court or the jury be the more compe-
tent; and we think, very clearly, that the Court is, because it is a question
of general and legal reasoning, and can best be performed by those whose
professional province and habit it is to discuss, weigh, and decide on
legal presumptions. The only argument against that is the difficulty
in cases of many and complicated facts, and contradictory evidence...
of properly separating to the comprehension of the jury, and to the
satisfaction of the judge, the matters of law and fact. But that only
proves the difficulty of deciding such cases, whether by the Court or
jury, and does not at all help us in saying whether this or that point
should be decided by the one or the other ....117
..Beal v. Robeson, 29 N.C. 280, 283 (1847).
11229 N.C. 280 (1847).
114 Id. at 282.

110 Id.
1
at 282-83.
Id. at 283-84.
27Id. at 285.
 NORTH CAROLINA LAW REVIEW [Vol. 47
Parallel to this line of decisions is another in which the court leaves
to the jury the determination whether under the facts defendant had
reasonable grounds for belief in plaintiff's guilt. Newton v. McGowan,1 8
a recent case, illustrates this line of decisions. In this case the trial court,
after instructing the jury that the burden of proof to show the absence
of probable cause was on the plaintiff, continued:
[I]f the plaintiff has satisfied you . . . that the affidavit made by the
defendant was made without a reasonable ground for suspicion, sup-
ported by circumstances sufficiently strong in themselves to warrant
a cautious man in the belief that the plaintiff was guilty of [the] crime of
larceny... or such affidavit for the issuance of such warrant was made
by the defendant without there existing to his knowledge such a state
of facts as would lead a man of ordinary caution to believe or to en-
tertain an honest and strong suspicion that the plaintiff was guilty of
the larceny . . . . [you should find no probable cause for the prose-
cution.]
If, on the other hand, you find that the defendant had a reasonable
ground for suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man in the belief that the plaintiff
had stolen his wood . . . [you should find probable cause for the
prosecution to exist.] 119
The court upheld this instruction.
The fundamental conflict between these lines of decisions involves
whether the judge or jury determines under the facts if grounds for
reasonable belief in guilt exists. Both verbalize the rule that probable
cause is a question of law for the court to decide. Similar inconsistencies
exist in the decisions of many other jurisdictions holding that probable
cause is a question of law. ° Theoretically, at least, the rule has been
interpreted to make the determination of the presence or absence of rea-
sonable ground for belief in guilt a function of the court and thus to take
from the jury one of the functions it normally performs in civil litigation.
This theoretical interpretation of the rule has not always been honored
in practical application and the result is the confusion found in the cases
from North Carolina and other jurisdictions.
The probable explanation for this divergent application of the rule
lies in the difficulties its strict application would create. Strict application
requires a special verdict, an instruction that indicates the presence or
absence of probable cause under various factual versions which the jury
118256 N.C. 421, 124 S.E.2d 142 (1962).
£19 Id. at 424, 124 S.E.2d at 144.
... _Annot., 87 A.L.R.2d 183 (1963).
1969] MALICIOUS PROSECUTION
may find from the evidence, or submission of the case to the jury in
some other way that preserves to the court the determination of probable
cause. When the factual determinations involved in the case are numer-
ous and complicated and must be made from conflicting evidence, presen-
tation of a case-which usually involves issues other than probable cause
-in a way that permits the court to decide the question of probable
cause is, to say the least, difficult. The submission of the case to the
jury, except under a special verdict, is further complicated by the impor-
tance, upon the determination of probable cause, of a number of inferences
and presumptions which are based upon the disposition of the original
proceedings 2 ' or a variety of other factors, such as the defendant's reliance
22
upon the advice of an attorney in prosecuting the action.
Although any realistic appraisal of the predominance of either of these
Views121 is difficult, a number of recent decisions' 4 leave to the jury the
determination whether defendant had reasonable grounds for belief in
plaintiff's guilt. Further, certain principles are applicable whichever view
is followed. The determination of the facts is for the jury, and the judge
must instruct at least as to what in law constitutes probable cause."' The
court cannot instruct the jury that probable cause or the want of it has
been shown, since the truth of the evidence is for the jury.2 6 An instruc-
12 7
tion for the jury to find probable cause, if they believe the evidence,
or a peremptory instruction that probable cause is lacking, 28 may be
appropriate if that is the only reasonable conclusion that can be drawn
from the facts. When all the facts that the evidence tends to show, if taken
... See pp. 295-98 supra.
"' See pp. 294-95 supra.
... Cases which support the view that the determination whether reasonable
grounds for belief in guilt exist is for the judge include: Carson v. Doggett, 231
N.C. 629, 58 S.E.2d 609 (1950); Rawls v. Bennett, 221 N.C. 127, 19 S.E.2d
126 (1942); Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740 (1912); Down-
ing v. Stone, 152 N.C. 525, 68 S.E. 9 (1910); Jones v. Wilmington & W.I&R.,
125 N.C. 227, 34 S.E. 398 (1899); Durham v. Jones & Powell, 119 N.C. 262,
25 S.E. 873 (1896); Bradley v. Morris, 44 N.C. 395 (1853). Cases which support
the view that this determination is for the jury include: Newton v. McGowan,
256 N.C. 421, 124 S.E.2d 142 (1962); Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d
307 (1948); Mitchem v. National Weaving Co., 210 N.C. 732, 188 S.E. 329
(1936); Stanford v. Grocery Co., 143 N.C. 419, 55 S.E. 815 (1906); Thurber v.
Eastern Bldg. & Loan Ass'n, 118 N.C. 129, 24 S.E. 730 (1896).
2
' See cases cited note 123 supra.
""Bryant v. Murray, 239 N.C. 18, 79 S.E.2d 243 (1953) ; Leggett v. Blount,
4 N.C. 560 (1817).
12
0Id.
""Durham v. Jones & Powell, 119 N.C. 262, 25 S.E. 873 (1896).
" Rice v. Ponder, 29 N.C. 390 (1847).
 NORTH CAROLINA LAW REVIEW [Vol. 47

as established, are insufficient to support the finding that the court has
directed, the instruction is erroneous. 2

MALICE
Malice is an essential element of a malicious prosecution action and
the plaintiff must plead and prove it if he is to recover. 180 Although in
the past the supreme court has vacillated on the question of the type of
malice required,' 3 ' it is now clear that express or particular malice in the
sense of personal ill will, grudge, or a desire to be revenged is not neces-
sary. 32 General malice is sufficient and consists of a wrongful act done
intentionally without just cause or excuse. 33 The determination whether
4
malice exists is for the jury.
Malice sufficient to take the case to the jury may be implied from the
want of probable cause,' 35 though lack of probable cause is not sufficient
to establish conclusively malice or to create a presumption that it exists.
The inference is merely one of fact which the jury may or may not make.
It is only evidence of malice to be considered by the jury with any other
evidence that may be offered.1"' In the absence of other evidence, how-
ever, the jury may still reject the inference. 3 7 When the prosecution is
completely groundless, the jury may infer malice almost of necessity since
it cannot be accounted for in any other way.'
A prosecution which is initiated to accomplish some collateral purpose
is malicious. 9 Malice is present when a prosecution is begun to coerce
the payment of a debt, 40 or a lunacy proceeding is instituted to harass
" Johnson v. Chambers, 32 N.C. 287 (1849) ; Williams v. Woodhouse, 14 N.C.
257 (1831).
Abbitt v. Bartlett, 252 N.C. 40, 112 S.E.2d 751 (1960).
.3.Cases which required express malice: Savage v. Davis, 131 N.C. 159, 42
S.E. 571 (1902); Brooks v. Jones, 33 N.C. 260 (1850). Cases which required
general malice only: Bell v. Pearcy, 27 N.C. 83 (1844); Johnston v. Martin, 7
N.C. 248 (1819).
2
Motsinger v. Sink, 168 N.C. 548, 84 S.E. 847 (1915); Downing v. Stone,
152 N.C. 525, 68 S.E. 9 (1910).
133 Gaither v. Carpenter, 143 N.C. 240, 55 S.E. 625 (1906); Railroad Co. v.
Hardware Co., 138 N.C. 175, 50 S.E. 571 (1905).
...Turnage v. Austin, 186 N.C. 266, 119 S.E. 359 (1923); Thurber v. Eastern
Bldg. & Loan Ass'n, 116 N.C. 75, 21 S.E. 193 (1895)
...Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966); Brown v. Martin,
176 N.C. 31, 96 S.E. 642 (1918).
..Mitchem v. National Weaving Co., 210 N.C. 732, 188 S.E. 329 (1936);
Merrell v. Dudley, 139 N.C. 57, 51 S.E. 777 (1905).
3 7
1 Id.
... McGowan v. McGowan, 122 N.C. 145, 29 S.E. 97 (1898) (dictum).
13. Dickerson v. Atlantic Ref. Co., 201 N.C. 90, 159 S.E. 446 (1931).
1.0 Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966); Smith v. Somers,
213 N.C. 209, 195 S.E. 382 (1938).
19691 MALICIOUS PROSECUTION
the plaintiff, to separate his grandson from him, and to impeach the valid-
ity of his will,"' or an attachment is levied to gain possession of property
from the plaintiff.142 The defendant's declaration that he would spend a
thousand dollars in order to have his revenge 143 or his threat to ruin the
plaintiff's credit by filing a bankruptcy petition 4 4 is admissible evidence
of malice.
That the defendant acted upon the advice of counsel is evidence that
the prosecution was begun without malice.' 45 Advice of counsel is evi-
dence of good faith only when obtained upon a full and fair disclosure of
all the facts to the attorney from whom advice about the prosecution is
sought. A failure to make such disclosure is evidence of malice since it
indicates that the advice was not sought honestly but in an effort to build
a case against the plaintiff. 4 6 The defendant cannot use the advice of
counsel as a subterfuge to escape liability, and when he is motivated by
actual malice, liability will attach even though he was advised by an
attorney, after a full and fair disclosure of the facts, that the prosecution
was justified. 47 The advice of a person who is not a lawyer is not evidence
of good faith and the fact that the one who advised the defendant is a
justice of the peace makes no difference. 48
Malice exists when the prosecution is found to be completely ground-
less. Thus it may be found if the defendant knew of plaintiff's innocence 49
or brought a second prosecution upon the same evidence on which plaintiff
had already been acquitted.'," Malice may be shown by any other circum-
stances that tend to show that defendant's prosecution was not for the
purpose of enforcing the criminal law. For example, a prosecution insti-
gated because the plaintiff had been the only witness against defendant's
brother in an earlier trial would be malicious.' 5 ' However, the conduct
of others for which the defendant is not responsible cannot be relied on
to establish malice. Remarks of the defendant's attorney during the course
of the prosecution, which were not authorized or participated in by the
1 42Davenport 158 N.C. 54573 (1859).
Lynch, 51 N.C.104,
Ludwick v. v.Penny, S.E. 228 (1911).
133 N.C. 422, 45 S.E. 760 (1903).
Nassif v.v. Huffines,
Coble
... Goodman, 203 N.C. 451, 166 S.E. 308 (1932).
Bryant v. Murray, 239 N.C. 18, 79 S.E.2d 243 (1953); Downing v. Stone,
...
152 N.C. 525, 68v. S.E.
Honeycut
9 (1910).
Freeman, 35 N.C. 320 (1852).
147 Davenport v. Lynch, 51 N.C. 545 (1859).
"'aBeal v. Robeson, 30 N.C. 276 (1848).
140 Bell v. Pearcy, 27 N.C. 83, 84 (1844) (dictum).
1.0 Coble v. Huffines, 132 N.C. 399, 43 S.E. 909 (1903).
" Watt v. Greenlee, 9 N.C. 186 (1822).
 NORTH CAROLINA LAW REVIEW [Vol. 47

defendant, are not admissible.' Similarly, the rough manner in which a

police officer arrested the plaintiff when defendant had no control over it
53
cannot be shown.1
INSTITUTION AND FAVORABLE TERMINATION
OF PRIOR PROCEEDINGS

Institution
The plaintiff must show that the prior proceedings that form the basis
of his malicious prosecution action were instituted by the defendant.'
Evidence that the defendant applied for the warrant against plaintiff,
caused him to be arrested and bound over, went before the grand jury as
a witness against him, and made a wager that he would convict the plain-
5 If
tiff is sufficient to show the institution of the proceedings by him.Y
the defendant procures the institution of the prosecution by another, as
where he hires an attorney to investigate and the attorney swears out a
warrant for plaintiff's arrest, he is liable. "' On the other hand, when the
solicitor institutes proceedings without the defendant's solicitation on the
basis of information provided by the defendant or disclosed in the defen-
dant's unsuccessful prosecution of the plaintiff before a magistrate, insti-
tution of the proceedings by the defendant cannot be found.'5
North Carolina holds that the proceedings must be upon valid process
before a malicious prosecution action can be maintained. When the pro-
cess is void 58 or fails to state a criminal offense," 9 the proceedings on it
are a nullity. Mere irregularity in the process, however, does not make
it invalid, and less precision may be required in a warrant than in a formal
indictment for it to be valid.' The North Carolina view is a minority
one"- and seems to be based on technicality rather than reason. When
the other essentials for a malicious prosecution action exist, the conse-
quences to the plaintiff of his trial for an alleged crime are not alleviated
by the invalidity of the process. The harm he has suffered is the same
whether the process is valid or not.
..Taylor v. Huff, 130 N.C. 595, 41 S.E. 873 (1902).
...Jones v. Wilmington & W.R.R., 125 N.C. 227, 34 S.E. 398 (1899).
.. Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122 (1939).
..Kline v. Shuler, 30 N.C. 484 (1848).
..Brown v. Martin, 176 N.C. 31, 96 S.E. 642 (1918).
""Cooper v. Southern Ry., 165 N.C. 578, 81 S.E. 761 (1914) ; Humphries v.
Edwards, 164 N.C. 154, 80 S.E. 165 (1913).
...Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609 (1950).
..Moser v. Fulk, 237 N.C. 302, 74 S.E.2d 729 (1953); Hawkins v. Reynolds,
236 N.C. 422, 72 S.E.2d 874 (1952).
.0Bassinov v. Finkle, 261 N.C. 109, 134 S.E.2d 130 (1964).
...PROSSER § 113, at 854, nn. 17 & 18.
1969] MALICIOUS PROSECUTION
Once valid process is issued, any proceeding on it may be sufficient
to support an action for malicious prosecution. The issuance of a warrant
under which the plaintiff is arrested is enough, since an interference with
his person results.1"' Liability may also arise from the procurement of a
search warrant under which an unsuccessful search of the plaintiff's prem-
ises is made.' 63 Abandonment or discontinuance of the proceedings after
they are begun does not prevent liability. 6 '
At common law a malicious prosecution action could be based only
upon a prior criminal prosecution. In North Carolina a similar remedy
was provided for some civil suits in actions for wrongful and malicious
attachment, wrongful injunctions, etc.; this has been extended to cover
any civil suit in which "special damages" occur. 65
The supreme court has stated that the prior proceeding must be a
"judicial" one, and this requirement has on occasion been raised by the
defendant in an attempt to avoid liability. It was unsuccessfully asserted
in relation to a statutory lunacy proceeding before the clerk of court'66
and an administrative proceeding before a state agency. 67 Both were held
to be judicial proceedings upon which a malicious prosecution action
could be based.
Not every proceeding before an administrative agency, however, will
support an action for malicious prosecution. The court has stated that an
administrative proceeding may provide a basis for recovery "under certain
circumstances" when "such proceeding is adjudicatory in nature and may
adversely affect a legally protected interest."' 68 To support its holding
the court adopted the following reasoning from the Court of Appeals for
the District of Columbia:
Much of the jurisdiction formerly residing in the courts has been trans-
ferred to administrative tribunals, and much new jurisdiction involving
private rights and penal consequences has been vested in them. In a
broad sense their creation involves the emergence of a new system of
courts, not less significant than the evolution of chancery. The same
harmful consequences may flow from the groundless and malicious
institution of proceedings in them as does from judicial proceedings
similarly begun. When one's livelihood depends upon a public license,
it makes little difference to him whether it is taken away by a court
102 Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708 (1940).
... Pressley v. Audette, 206 N.C. 352, 173 S.E. 905 (1934).
' Cook v. Lanier, 267 N.C. 166, 147 S.E.2d 910 (1966).
105 See pp. 307-10 infra.
10
Fowle v. Fowle, 263 N.C. 724, 140 S.E.2d 398 (1965).
107 Carver v. Lykes, 262 N.C. 345, 137 S.E.2d 139 (1964).
Id. at 352, 137 S.E.2d at 145.
 NORTH CAROLINA LAW REVIEW [Vol. 47
or by an administrative body or official. Nor should his right to redress
the injury depend upon the technical form of the proceeding by which
it is inflicted. The administrative process is also a legal process, and
its abuse in the same way with the same injury should receive the same
69
penalty.1

Favorable Termination
To recover in a malicious prosecution action the plaintiff must allege
and prove that the prior prosecution has terminated and that its termina-
tion was in his favor.' A counterclaim cannot be maintained to recover
damages for the malicious prosecution of the action in which the counter-
claim is asserted .' 7 A malicious prosecution action based upon a prose-
2
cution that is still pending on appeal is also premature. 1
Proof of neither a trial and acquittal nor a formal order or judgment
is necessary to establish a termination of the prior prosecution7
The essential thing is that the prosecution on which the action for
damages is based should have come to an end. How it came to an end
is not important to the party injured, for whether it ended in a verdict
in his favor, or was quashed, or a nol. pros. was entered, he has been
disgraced, imprisoned and put to expense, and the difference in the
cases is one of degree, affecting the amount of recovery 7 4

The termination must, however, result in a discharge of the plaintiff so

17
that new process must issue to revive the proceeding against him. 5
The plaintiff's acquittal after trial obviously is a termination in his
favor. A nolle prosequi or nolle prosequi with leave is a sufficient ter-
mination though its purpose is to preserve the rights of the state. 7 ' A
discharge upon vacation of an arrest warrant, 177 a release by the justice
of the peace, 7 ' a dismissal of the action because of failure of the prose-
'a' Id. at 353, 137 S.E.2d at 145, quoting Melvin v. Pence, 130 F.2d 423, 426
(D.C. Cir. 1942).
... Wingate v. Causey, 196 N.C. 71, 144 S.E. 530 (1928); Johnson v. Finch,
93 N.C. 205 (1885).
'" Manufacturers & Jobbers Fin. Corp. v. Lane, 221 N.C. 189, 19 S.E,2d 849
(1942).
Howell v. Edwards, 30 N.C. 516 (1848).
"'Hatch v. Cohen, 84 N.C. 602 (1881).
'" Marcus v. Berstein, Cohen & Co., 117 N.C. 31, 33, 23 S.E. 38, 39 (1895).
... See Brinkley v. Knight, 163 N.C. 194, 79 S.E. 260 (1913).
""Taylor v. Hodge, 229 N.C. 558, 50 S.E.2d 307 (1948); Abernethy v. Burns,
210 N.C. 636, 188 S.E. 97 (1936); Dickerson v. Atlantic Ref. Co., 201 N.C. 90,
159 S.E. 446 (1931).
""Tucker v. Wilkins, 105 N.C. 272, 11 S.E. 575 (1890) (by implication).
" Winkler v. Lenoir & B.R. Lines, 195 N.C. 673, 143 S.E. 213 (1928).
19691 MALICIOUS PROSECUTION
cutor to appear, 7 9 a release obtained through habeas corpus,' and a
discharge at the end of term'"" all constitute favorable terminations on
which an action for malicious prosecution can be maintained. A voluntary
withdrawal or abandonment of the prosecution by the complaining wit-
ness is also a sufficient termination.'2
A termination of the proceeding by the plaintiff's conviction on the
criminal charges8 3 or by his release upon failure of the trial magistrate
to appear is not a favorable termination." 4 No favorable termination
exists when it is brought about by the plaintiff's own action or results
from a compromise into which he has voluntarily entered. 18 Under
these circumstances the plaintiff has instigated or consented to a termi-
nation that leaves undetermined the issues of his guilt and of the suf-
ficiency of defendant's evidence to establish it. Some courts hold 88 that
a compromise conclusively establishes probable cause for the prosecution
so as to defeat the malicious prosecution action. Although the practical
effect of the two views of the effect of a compromise is the same, the
sounder position seems to be the one that holds that the compromise pre-
vents a finding of a termination in favor of the plaintiff.

MALICIOUS INSTITUTION OF CIVIL PROCEEDINGS

North Carolina, as do apparently a slight majority of American juris-

dictions,' 8 7 permits an action for malicious prosecution in relation to some
civil proceedings. Although recovery in a malicious prosecution action
based upon earlier civil proceedings may include elements of damages
similar to those recovered in an action based upon a prior criminal prose-
cution, it is clear that the proof necessary for recovery in the two sit-
uations is not identical. Where the tort action grows out of earlier
criminal proceedings, the plaintiff is entitled to recover at least nominal
damages upon proof that the defendant initiated the proceedings ma-
liciously and without probable cause and that the proceedings terminated
in his favor.'8 Here recognition of the tort action safeguards the plain-
tiff's interest in freedom from malicious, unjustified criminal prosecution
',
Fowlev.v.Lanier,
Cook 263 N.C.
Fowle, 267 N.C. 166, 140 S.E.2d
724, 147 S.E.2d 910
398 (1966).
(1965).
181 Murray v. Lackey, 6 N.C. 368 (1818).
18 2
Hadley v. Tinnin, 170 N.C. 84, 86 S.E. 1017 (1919).
... Hardin v. Borders, 23 N.C. 143 (1840).
.8. Brinkley v. Knight, 163 N.C. 194, 79 S.E. 260 (1913).
.8Welch v. Cheek, 125 N.C. 353, 34 S.E. 531 (1899).
188 PROSSER § 113, at 858.
"' PROssER § 114, at 870. 256 N.C. 421, 124 S.E.2d 142 (1962).
...Newton v. McGowan,
 NORTH CAROLINA LAW REVIEW [Vol. 47
by providing a means of redress and whatever incidental deterrent effect
it may have.
On the other hand, no cause of action arises from the malicious in-
stigation of civil proceedings, standing alone, even though begun without
probable cause and terminated in plaintiff's favor. Before any cause of
action will exist in connection with malicious, unjustified civil proceed-
ings, they must have resulted in special damages beyond those normally
8
incident to a civil proceeding.8' The reasons for the special damages re-
quirement are set out by the court in Ely v. Davis:
The Legislature has seen fit to provide for the award of costs to the
successful litigant in civil actions, by way of compensation for expenses
incurred, and these costs have been held to be the only compensation
allowed by law ....
The policy of the law, while encouraging arbitrations and settle-
ments without suit, has ever been to afford fair opportunity to all to
have their claims determined in the Courts. To hold it now to be
that in every case of failure by the plaintiff to establish his allegation
of fraud, there being no special damage resulting therefrom, upon a
suggestion of malice and want of probable cause, an action for ma-
licious prosecution would lie against him, would open the flood-gate
to a species of litigation hitherto unknown in North Carolina ....100

A cause of action for malicious prosecution will not lie solely on the
grounds that defendant caused service of summons on the plaintiff in
a suit for recovery on a note, since no special damages would result.''
However, if in connection with the civil proceeding, the defendant has
caused execution to be issued against the plaintiff's person 1 02 or has
caused his property to be attached198 or taken control of by a receiver,'
an action for malicious prosecution will lie. An action to set aside a deed
in which lis pendens is filed creates a cloud upon plaintiff's title and is
considered sufficient interference with plaintiff's property to bring it
within the rule. 9 5 Where defendant causes a restraining order to issue
prohibiting a designated use by plaintiff of his property, the interference
199 Carver v. Lykes, 262 N.C. 345, 137 S.E.2d 139 (1964).
'111 N.C. 24, 27, 15 S.E. 878, 878 (1892).
. Jerome v. Shaw, 172 N.C. 862, 90 S.E. 764 (1916).
.9.Overton v. Combs, 182 N.C. 4, 108 S.E. 357 (1921) ; Tucker v. Wilkins, 105
N.C. 272, 11 S.E. 575 (1890).
1"'Brown v. Guaranty Estates Corp., 239 N.C. 595, 80 S.E.2d 645 (1954);
Tyler v.Mahoney, 166 N.C. 509, 82 S.E. 870 (1914).
" Nassif v. Goodman, 203 N.C. 451, 166 S.E. 308 (1932).
19. Chatham Estates v.American Nat'l Bank, 171 N.C. 579, 88 S.E. 783 (1916).
19691 MALICIOUS PROSECUTION
has also been held sufficient.196 An action for malicious prosecution has also
been sustained on the basis of the institution of proceedings before the
clerk of court under which the plaintiff was committed to a state mental
197
hospital.
Carver v. Lykes,""8 a recent case, upheld a malicious prosecution ac-
tion based upon the instigation by defendant of a hearing into the conduct
of a real estate broker by a state real estate licensing board with power
to revoke or suspend the realtor's license. The defendant had filed a
written, verified complaint with the licensing board, which, if it made out
a prima facie case, required the board because of a statutory provision
to hold the hearing. The requirement of "special damages" may be met
in this case either because the hearing could result in loss or suspension
of plaintiff's license or, less specifically, because of the possible adverse
effect the charge of misconduct could have on plaintiff's business. The
first of these grounds seems to be the one relied upon by the court. As
neither loss nor suspension of plaintiff's license occurred at any time,
Carver appears to represent a definite extension of the type of interference
with the person or property recognized in previous cases as sufficient
to support an action for malicious prosecution. In a sense, it may be a
natural extension of an earlier decision 9 9 that the restraint on alienability
of real property resulting from an action to set aside a deed in connection
with which lis peiudens was filed is sufficient. Yet, in that case both the
restraint on alienability resulting from the lis pendens and the property
to which it applied were specific; in the present case, this is true only
if the potential, rather than the actual, consequences of the earlier civil
proceeding are considered. If only the actual consequences to the plain-
tiff of the proceeding before the licensing board are taken into account,
the interference amounts to nothing more than the general adverse ef-
fect upon the plaintiff's business opportunities of the charge of misconduct
and the hearing on that charge.
Examination of these possibilities demonstrates why the Carver case
appears to expand the recognition of an action for malicious prosecution
based upon civil proceedings. If we consider the potential effect of a civil
proceeding, every civil suit for recovery of money, if successful, will re-
sult in a lien against plaintiff's real property upon docketing of the judg-
ment. Also, any given civil suit may affect the plaintiff's business op-
... Shute v. Shute, 180 N.C. 386, 104 S.E. 764 (1920); Martin v. Rexford, 170
N.C... t540,
Fowle87v.S.E. 352 236
Fowle, (1915).
N.C. 724, 140 S.E.2d 398 (1965).
108262 N.C. 345, 137 S.E.2d 139 (1964).
... Chatham v. American Nat'l Bank, 171 N.C. 579, 88 S.E. 783 (1916).
 NORTH CAROLINA LAW REVIEW [Vol. 47
portunities almost as drastically as the revocation or suspension of his
license. If only the actual consequences of the civil proceeding are to be
taken into account, any number of civil proceedings may have the same
or a worse adverse effect upon the plaintiff's business as an unsuccessful
hearing to revoke or suspend his business license. One may legitimately
ask, if the effect of the Carver decision is to extend the protection af-
forded by an action for malicious prosecution, why relationships other
than commercial should not be given equal protection by the law.
It should also be noted that although the "special damages" rule
states a prerequisite to the existence of the cause of action, apparently it
does not place any limitation upon the damages recoverable once the cause
of action is proved. Thus, in the Carver case the court recognized that
the plaintiff "may recover for any resulting loss of business, injury to
reputation, mental suffering, expenses reasonably necessary to defend
himself against the charge, and any other loss which proximately resulted
from the defendant's wrongful action."' 20
200262 N.C. at 352-53, 137 S.E.2d at 145.